Digital Hub Development Agency v Keane and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 31 January 2008
• Neutral Citation: [2008] IEHC 22
• Docket Number: [No. 168 CA/2004]
• Court: High Court
• Date: 31 January 2008

[2008] IEHC 22

THE HIGH COURT

[No. 168 CA/2004]

Digital Hub Development Agency v Commissioners of Charitable Donations and Bequests for Ireland and Persons Unknown (Keane & O'Reilly)

IN THE MATTER OF SECTION 22(1)

OF THE LANDLORD

AND TENANT (GROUND RENTS) ACTS 1967 - 1984

BETWEEN

DIGITAL HUB DEVELOPMENT AGENCY SUBSTITUTED BY ORDER OF THE COUNTY REGISTRAR FOR THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

APPLICANT

AND

MARTIN KEANE AND GERRY O'REILLY, THE COMMISSIONERS OF CHARITABLE DONATIONS AND BEQUESTS FOR IRELAND AND PERSONS UNKNOWN

RESPONDENTS

LANDLORD & TENANT (GROUND RENTS) ACT 1967 S22(1)

VENDOR & PURCHASER ACT 1874 S2

DIGITAL HUB DEVELOPMENT AGENCY ACT 2003 (ESTABLISHMENT DAY) ORDER 2003 SI 303/2003

DIGITAL HUB DEVELOPMENT AGENCY ACT 2003 S7

DIGITAL HUB DEVELOPMENT AGENCY ACT 2003 S41

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S4

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S9

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S10

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(d)

LANDLORD & TENANT (AMDT) ACT 1980 S4(2)

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S16(2)

HARBOURS ACT 1946

LANDLORD & TENANT (GROUND RENTS) ACT 2005 S2

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S9(1)

A O'GORMAN & CO LTD v JES HOLDINGS LTD UNREP PEART 31.5.2005 2005/2/293 2005 IEHC 168

LANDLORD & TENANT ACT 1931 S35

LANDLORD & TENANT (GROUND RENTS) ACT 1967 S3(5)(b)

LANDLORD & TENANT (GROUND RENTS) ACT 1967 S20(1)

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 S5(a)

LANDLORD & TENANT (GROUND RENTS)(NO 2) ACT 1978 PART II

LANDLORD & TENANT ACT 1931 S46(1)

LANDLORD & TENANT ACT 1931 S47(1)

LANDLORD & TENANT (AMDT) ACT 1984 S7

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)

LANDLORD & TENANT (AMDT) ACT 1984 S7(4)

LANDLORD AND TENANT

Lease

Enlargement of interest - Application to acquire fee simple - Whether organ of State obliged as lessee to convey fee simple to lessor - Whether buildings constructed by lessor or lessee - Whether buildings subsidiary and ancillary - Whether lease constituting 'building lease' - Whether purchase price correctly computed - Howard v Commissioner of Public Works [1994] 1 IR 101 and A O'Gorman & Co Ltd v JES Holdings Ltd [2005] IEHC 168 (Unrep, Peart J, 31/5/2005) applied - Vendor and Purchaser Act 1874 (37 & 38 Vict, c 78) s 2 - Landlord and Tenant Act 1931 (No 55), ss 35, 46 and 47 - Landlord & Tenant (Ground Rents) Act 1967 (No 3), ss 3, 20 and 22 - Landlord and Tenant (Ground Rents) (No 2) Act 1978 (No 16), ss 4, 5, 9, 10 and 16 - Landlord and Tenant (Amendment) Act 1984 (No 15), ss 4 and 7 - Digital Hub Development Agency Act 2003 (No 23), ss 7 and 41 - Landlord and Tenant (Ground Rents) Act 2005 (No 7) s 2 - Respondent's appeal against order compelling sale of fee simple refused, sale price varied (2004/168CA - O'Neill J - 31/1/2008) [2008] IEHC 22

Digital Hub Agency v Keane

O'Neill J.

1 This is an appeal from the order of the Circuit Court (Her Honour, Judge Linnane) made on the 23rd April, 2004 whereby the Circuit Court affirmed the order of the County Registrar made on 26^th day of September, 2003. By her order as aforesaid the County Registrar, determined, awarded and directed that the respondents in this appeal (the applicants before her) had a right as incident to its existing interest, to enlarge that interest into the fee simple and for that purpose to acquire by purchase the fee simple and all intermediate interests therein for the sum of €40,600, in the premises known as:

"ALL THAT AND THOSE the heraditaments and premises known as Nos. 10, 11 and 12 Rainsford Street in the Parish of St. Catherine and City of Dublin and more particularly described in an indenture of lease dated the 8^th of October, 1958 and made between Arthur Guinness & Son and Company (Dublin) Ltd of the one part and A Millar & Co Ltd of the other part."

2 By her said order she further directed that the sum of €40,600 be apportioned as to €40,000 to be paid to the respondents Martin Keane and Gerry O'Reilly (the appellants herein) in respect of their freehold interest in the premises and the balance of €600 to be lodged in court to the credit of the matter in respect of all intermediate interests which are unknown and ascertained. She further directed that the appellants join in a deed of conveyance to the respondents in respect of their interest in the premises.

3 The background to this matter is as follows. By a lease made on the 20^th day of July, 1860 between Edward Corles as lessor and Adam Millar as lessee, the said lessor, described as being from the City of Harcester in England demised to the lessee, described as a merchant of Thomas Street in the City of Dublin, certain premises at Rainsford Street in the City of Dublin for a term of ninety nine years from the 1^st of May, 1860 at the yearly rent of £55. Six premises were thus let namely Nos. 22, 23, 24 Rainsford Street in the City of Dublin and also the premises the subject matter of these proceedings, Nos. 10, 11 and 12 Rainsford Street in the City of Dublin. The rent of £55 was in respect of all of these premises.

4 The lease in question has not survived and evidence of it is to be found in a Memorial of the indenture of lease and pursuant to s. 2 of the Vendor and Purchaser Act, 1874 the recital of facts as set out in this Memorial, insofar as there is no evidence to the contrary, is to be taken as sufficient evidence of the truth of the facts stated in the Memorial.

5 The description of the Nos. 10, 11 and 12 Rainsford Street in the Memorial is as follows:

"…all that and those two dwelling houses or tenements together with the ground in the rear thereof known as Nos. 10 and 11 Rainsford Street formally in the possession of the said James Vose together with the liberty of the gateway on the Westside of said houses bounded on the East by the late widowed Downes holding on the West by the late Michael Bardins holding on the North by Goldmans Brook on the South by Rainsford Street containing in breadth in front exclusive of said gateway 37 feet 9 inches and in rear 44 feet and in depth from front to rear 141 feet be the same several admeasurements more or less which said several houses were lately in the tenure or occupation of George Eastwood and also all that and those the dwelling house, tenement and premises known as No.12 Rainsford Street with the liberty of the gateway on the East side of said house, bounded on the East side by the late Thomas Mitchells Holding, on the West by Church ground, on the North by Goldmans Brook and on the South by Rainsford Street containing in breadth in the front to Rainsford Street 25 feet exclusive of the gateway and in the rear 25 feet 6 inches and in depth from front to rear 138 feet be the said admeasurements or any of the more or less which said last mentioned house and premises were formally in possession of Michael Bardin and lately in the occupation of Patrick Adams Dairyman all of which said premises are situated lying and being in the liberties of Thomas Court and Donore in the Parish of St. Catherine in the City of Dublin together with the appurtenances and all rights of way, rights of passing and easements whatsoever belonging thereto or enjoyed therewith…"

6 By a Deed of Conveyance and Assignment dated the 28^th June, 1895 between William Millar and Fitzadam Millar of the one part and A Millar & Company Ltd of the other part, the lessee's interest in the premises the subject matter of the lease dated the 20^th July, 1860 was assigned to A Millar & Company Ltd. The lessor's interest under the said lease was by a deed of the 29^th April, 1936 conveyed to Arthur Guinness Son & Company Ltd.

7 The term of ninety nine years granted in the aforesaid lease of the 20^th July, 1860 expired on the 30^th day of April, 1959. By a lease dated the 8^th October, 1958 Arthur Guinness Son & Company (Dublin) Ltd. as lessors demised to A Millar & Company Ltd as lessee the premises knows as ALL THAT AND THOSE the heraditaments of premises know as Nos. 10, 11 and 12 Rainsford Street for term of ninety nine years computed from the 1^st day of May, 1959 at the yearly rent of £150.

8 By a Deed of Conveyance and Assignment dated the 22^nd of February, 1988 Adam Millar & Company Ltd (in receivership) assigned to Lee & Company (Dublin) Ltd the lessee's interest under the said lease of the 8^th day of October, 1958 in Nos. 10, 11 and 12 Rainsford Street in the City of Dublin.

9 By a Deed of Confirmation and Waiver dated the 28^th August, 2000 made between Arthur Guinness Son & Company (Dublin) Ltd ("AGSD"), Guinness Ireland Group ("GIG"), DIAGEO plc ("DIAGEO") and Lee & Company (Dublin) Ltd, DIAGEO, AGSD and GIG confirmed granted and demised to Lee & Co. (Dublin) Ltd the premises the subject matter of the lease of the 8^th October, 1958 for the balance of the term created by the lease and also waived compliance with clause 2(c) of the lease insofar as it related to the demolition already carried out of certain buildings on the demised premises.

10 By a Deed of Assignment dated the 17^th August, 2001, Lee & Company (Dublin) Ltd assigned to the Commissioners of Public Works in Ireland the lessee's interest under the lease of the 8^th October, 1958 in Nos. 10, 11 and 12 Rainsford Street in the City of Dublin.

11 By a Deed of Conveyance dated the 21^st June, 2001, Guinness Ireland Group Ltd conveyed to Martin Keane the first named respondent, the lessor's interest held under an indenture of Fee Farm Grant dated the 27^th of February, 1866, in Nos. 10, 11 and 12 Rainsford Street, for the sum of IR£25,000. Thereafter the first named appellant conveyed that interest to himself and the second named appellant jointly.

12 By a notice dated the 14^th day February, 2003 being a notice of intention to acquire the fee simple, pursuant...